SC Sets Safeguards Against Hasty Arrests in Matrimonial POCSO Cases

The Supreme Court has laid down nationwide safeguards to prevent hasty arrests and misuse of the Protection of Children from Sexual Offences (POCSO) Act in matrimonial and child-custody disputes, directing investigating authorities to undertake greater scrutiny before taking coercive action against a parent or family member accused of sexually abusing a child.

A Bench of Justices J.B. Pardiwala and K.V. Viswanathan, in its September 24 judgment in Rajeev Giri v. Ekta Singh, said the safeguards apply when a POCSO offence is alleged against a parent or family member living under the same roof as the child, and a matrimonial dispute exists between the child's parents. Police must verify the existence of such a dispute. The Court clarified that the ruling does not grant parents immunity from arrest or dilute POCSO's child-protection framework.

Where the threshold conditions are met, investigators should not immediately arrest an accused after registration of an FIR. The Court stressed that registration of an FIR does not automatically require arrest, and directed officers to comply with Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which lays down conditions governing arrest without warrant.

A key safeguard is an independent psychological or psychiatric evaluation of the child. The investigating officer or Special Juvenile Police Unit should engage an expert in child and adolescent psychiatry or clinical psychology in consultation with the District Child Protection Unit, or the District Legal Services Authority where a DCPU is unavailable. The expert's assessment must remain free from influence by either parent or investigators. In exceptional cases where evidence is already palpable, the assessment may be dispensed with, but reasons must be recorded in writing.

The safeguards also extend to POCSO Special Courts dealing with private complaints. Before taking cognisance and issuing summons, courts should consider an expert assessment and demonstrate application of mind to the facts.

The judgment arose from a Bengaluru custody dispute involving estranged parents. A POCSO FIR registered on March 28, 2024, accused the father of sexually abusing their minor daughter. The Supreme Court later transferred the investigation to the CBI, which formed a committee including NIMHANS experts Dr Lakshmi Sravanti Tanuku and Dr Anamika Sahu. Investigators examined teachers, a counsellor, neighbours, other witnesses and CCTV footage.

The CBI concluded that the allegations were not established. The Supreme Court quashed the FIR, while directing that legal custody remain with the father and ordering a structured reintegration process through the Family Court.

The Court also referred to Section 22 of POCSO, which penalises specified false complaints, but noted that such punishment may come only after an accused has already suffered arrest, stigma or family disruption. It directed District Child Protection Units to update expert registers and ordered the judgment circulated to High Courts, States, Union Territories, police stations and relevant courts.

The ruling therefore does not bar arrest of parents in POCSO cases. Instead, it requires careful, evidence-based and context-sensitive scrutiny before coercive action where a matrimonial dispute and co-residing accused family member are involved.